[EL] How Long Before We Know Whether Those 100, 000 Harris Count Drive-Thru Votes Will Be Counted?

[Pildes, Rick]

Before posting on ELB about this issue, I want to run this by the list-serv to see if federal-courts readers think I am missing something in this analysis:

This is my assessment of what the various next steps will be for the legal disputes over the Harris County drive-thru ballots.  Before addressing the litigation, though, here's a practical point:  let's say Biden would capture 80% of those 1000,000 or so ballots.  If the outcome in Texas is close enough to turn on 80,000 votes, it's hard to imagine that Biden would not be elected, regardless of who wins Texas.  Winning Texas for the Democrats would of course have all sorts of important consequences, but it seems extremely unlikely that the outcome of the election could turn on these ballots.  And there are other races, such as the Senate race, that also matter greatly.

On the litigation process:  Whether or not the DJ on Monday rules that these ballots are valid votes, I think Texas election administrators are likely going to have to segregate those ballots (a court order might require that, but even without a court order).  The battles are the subject of ongoing litigation in both federal court and, as of now, the Texas Supreme Court.

Assuming the courts rule that throwing these ballots out would violate due process, when would those ballots be counted and included in the official numbers from Texas?  I think it would require a final decision on the merits from the Texas Supreme Court, holding that these are valid votes under state law, and the federal courts, holding that there is no federal constitutional violation (or that tossing these ballots would be an improper remedy).  The federal courts will likely move more slowly than the Texas Supreme Court, because appeals will come into play in the federal courts.

I assume the DJ will rule Monday on the merits and that the losing party will file an appeal, also on Monday, in the Fifth Circuit.  How fast could the process move after that?  Will the Fifth Circuit require the opposing party to file papers as soon as Tuesday?  Will the Fifth Circuit issue a decision on the merits Tuesday night?  The losing party will likely then seek a stay from the Supreme Court.  Also, if the Texas Supreme Court were to hold these votes violate state law, I would expect the losing side to seek a stay from the Supreme Court also (arguing that the Texas decision violates due process).

The question then becomes how quickly the Supreme Court acts, which would turn on how the lower courts, state and federal, ruled.  If those courts hold these are valid votes, the Supreme Court could deny a stay.  That would be the end of the matter and the votes would then be counted.  If either the Fifth Circuit or the Texas Supreme Court holds that these votes are invalid and must be excluded, I would think the Supreme Court would take more time and write an opinion on the merits, rather than resolving the issues through the denial of a stay application from the Democratic candidates.

During all this time, those ballots would not be counted.  Given these scenarios, the quickest we might get to a final resolution, it seems to me, is Wednesday.  And that might be on the optimistic side.  It could also take many days longer than that.

Texas will be one of the early, battleground states to release its nearly complete vote count.  But that count likely will not include these ballots.  I suspect we will have to wait until at least Wednesday for that fuller count.


Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Square So.
NYC, NY 10014
347-886-6789

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